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A Tale Of A Virgin And Flat Beds (Or watch those figures in your claims)*

Virgin Atlantic Airways was granted a patent for an aircraft passenger seating construction in which the seat part formed the bed, in contrast to seats Virgin used in practice which had a “flip-over” construction. Claim 1 was of the EPO-style two-part form, pre-characterizing and characterizing form. It required the provision of seat units and recited that “each seat unit… further comprising means forming or being configurable for forming a substantially flat bed (47, 48, 67, 74, 76)”.

Virgin argued the language of the claim simply required that as well as having elements which could form a seat, each seat also (”further”) had elements which can form a substantially flat bed. There was no requirement in the claim that the elements forming the bed be completely distinct from the elements forming the seat. They also argued that by virtue of the form of the claim having a pre-characterizing clause and a characterizing clause

“the patentee considered that all the integers of the pre-characterizing parts of the claim were present in [the prior art which did not have flip-over seats and accordingly], the patentee cannot be taken to have limited the claim to flip-over seats in the pre-characterizing part of the claim. This integer is in the pre-characterizing part of the claim and cannot therefore be taken to be limited to flip-over seats”.

The judge disagreed. He noted that the conventional meaning of the word “further” is “additionally”.

“The fact that it is the seat unit, rather than the seat, which must “further” comprise the ‘bed means’ seems to me to emphasize that the claim is speaking of something different from the seat itself.”

“At best, from Virgin Atlantic’s standpoint, the word “further” is ambiguous. But in that event it is clear that the reference numerals in the claim itself (as well as the specification and drawings) can be used to resolve the ambiguity. And they point clearly to a separation between the seat and the bed means.”

Construed, the judge concluded that the defendant’s seat did not infringe the Virgin patent.

Moreover, the judge went on to say that if he had construed the claims as had been put forward by Virgin, the patent would not have been entitled to its priority dates and would have been invalid for added subject-matter.